Analysis
27 The principles relating to the setting aside of a Subpoena to produce documents are well-established. A subpoena will be set aside if it is oppressive or an abuse of process. The absence of a legitimate forensic purpose or a conclusion that the issuing party is fishing for a case rather than evidence in support of a case, will lead to the setting aside of a subpoena. An issuing party need not establish that the documents being sought will definitely advance his or her case and it is sufficient if the documents could possibly throw light on the issues or it appears to be "on the cards" that they will do so. In Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; (1989) 88 ALR 90, Beaumont J said (at 103):
Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions:
(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts.
(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly.
…
The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.
(See also Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [23]-[24] per Brereton J; Cairns BC, Australian Civil Procedure (12th ed, Lawbook Co, 2020) at 708-709; Zuckerman AAS, Wilkins S, Adamopoulos J, Higgins A, Hooper S and Vial A, Zuckerman on Australian Civil Procedure (LexisNexis Butterworths Australia, 2018) at [15.161]-[15.172].)
28 Paragraph 1 of the subpoena addressed to SNOL is limited to invoices which record certain matters, being attendances at Court and correspondence or advice. The paragraph does not include the correspondence or advice, but just the invoices containing narrations recording the fact of the correspondence or advice. The essence of SNOL's submissions in support of the application to set aside the subpoena is that the fact that its own lawyers attended to observe the proceedings could not be a factor which supports the making of a third party costs order. Nor could it be relevant that SNOL corresponded with and received advice from its own lawyers about the proceedings. SNOL submitted that neither of those matters rendered it the "effective litigant" or the "real party" to the suit. It could not be the basis for a finding that the proceedings were pursued in the interests of SNOL, rather than in the interests of the applicant. SNOL submitted that the fact that its own lawyers observed the proceedings and communicated with their client about the proceedings is not evidence that SNOL controlled, directed or took an active part in the conduct of the proceedings on the applicant's behalf. That circumstance would not establish any of the five criteria identified by Basten JA in FPM Constructions v City of Blue Mountains and set out above.
29 SNOL submitted that there is nothing surprising about the fact that it would wish to follow the conduct of the proceedings as they involved a senior executive of the Seven Network Group and SNOL had provided a loan to the applicant for the legal costs of the IGADF Inquiry and the proceedings until ACE provided a loan to the applicant in June 2020. Furthermore, SNOL is a news organisation reporting on the proceedings which were high profile and very often the subject of news broadcasts.
30 SNOL submitted that the fact that it received correspondence or advice from its lawyers "could not be relevant to whether a third party costs order should be made". The Court could not safely draw any inference as to the content of any communications or advice that SNOL may have received from its own lawyers. SNOL referred to the suggestion in the letter from the respondents' solicitors dated 19 June 2023 to the effect that any competent lawyer observing the proceedings would, or should, have advised SNOL that the applicant's prospects were so impaired that it was unreasonable for SNOL and/or ACE to continue to lend money to the applicant to fund his legal costs. SNOL submitted that the Court could not infer simply from the fact that SNOL's lawyers observed the proceedings, that those lawyers did form, or should have formed, that view and did give, or should have given, that advice not least because neither SNOL nor its lawyers had access to documents subject to suppression orders, evidence given in closed Court or closed Court judgments. SNOL submitted that in light of the fact that the content of the communication or advice will not be disclosed, the highest the evidence could rise would be that SNOL was monitoring the proceedings.
31 SNOL made a particular submission in relation to para 2 of the subpoena addressed to it. It submitted that if a document comprising communications between SNOL and its lawyers was created for the dominant purpose of providing legal advice to SNOL, then the whole of the document was privileged. It submitted that it is not open to a party to subpoena wholly privileged documents by requiring the subpoenaed party to assume the burden of masking all of the substantive content of the document.
32 ACE submitted that the subpoena addressed to it lacks a legitimate forensic purpose for the same reasons the subpoena addressed to SNOL lacks a legitimate forensic purpose.
33 Counsel for the respondents made the observation in the course of submissions that with the limitations referred to above (at [26]), the evidence suggests that in relation to Herbert Smith Freehills, there will be a nil return in relation to that subpoena.
34 The parties to whom the subpoenas are addressed submitted that even if the above arguments are not successful and the subpoenas are not set aside, nevertheless they should be limited in terms of time.
35 First, they submitted that the trial at first instance concluded on 27 July 2022 and that documents created after this date could not rationally inform a consideration of whether it is appropriate to make a third party costs order for the respondents' costs of the proceedings. ACE submitted that the respondents have not explained how it would be relevant to their third party costs application that, assuming it to be the case, ACE had engaged Herbert Smith Freehills to review the judgment and advise on the prospects of appeal. It submitted that it may seek such advice for the purposes of considering any request made by the applicant for the funding of any appeal he may seek to bring. It submitted that if it was to obtain such advice from its own lawyers, that fact could not support a third party costs order in respect of the first instance proceedings.
36 Secondly, SNOL and ACE submitted that the subpoenas should be limited in time to reflect the periods in relation to which each of those companies was providing funds to the applicant. The subpoena to SNOL should be limited to the period up to and including 23 June 2020 and the subpoena to ACE should be limited to the period from 24 June 2020.
37 For their part, the respondents submitted that the subpoenas they had issued had a legitimate forensic purpose. They submitted that this was not the right stage in the determination of the application at which to argue about what inferences might be drawn from documents that have not yet been produced. The Court cannot be satisfied at this stage that there is no conceivable basis upon which the documents which are sought might be relevant to the exercise of the Court's discretion. The respondents submitted that the inference that might be drawn about a third party's involvement in a proceeding might be different if they were in attendance at Court on only one day, as compared with the inference that might be drawn if they were in attendance at Court on every day of the 110 days of the hearing.
38 The respondents also submitted that it is not possible to identify a hard separation between the period prior to 23 June 2020 and the period from 24 June 2020 onwards. In this respect, they referred to and relied upon clause 7 of the ACE letter dated 24 June 2020. That clause refers to not only oversight and management, but the continued oversight and management by SNOL's legal team. That is said to be important for a successful outcome to the proceedings.
39 In my opinion, the subpoenas (including the subpoena addressed to Addisons) should be confined in the manner indicated in [26] above. So confined, they reveal a legitimate forensic purpose.
40 In my respectful opinion, the flaw in the argument for setting aside the subpoenas is that it sets the test of relevance at too high a level. The part played in the litigation by SNOL and ACE is undoubtedly relevant to the third party costs application, although it is but one factor. No doubt a direct instruction from one of those parties to the applicant about the conduct of the litigation might be the best evidence of direct and active involvement. Further, it is likely that the respondents will at the appropriate time place significant weight on clause 7 of the applicant's agreement with ACE. Neither of those observations mean that other forms of involvement or degrees of involvement are not relevant, albeit, considered alone they may not carry the day for the respondents. The fact is that where documents may possibly throw light on the issues, then they are properly the subject of a subpoena to produce them.
41 With respect to the argument that legal professional privilege would attach to the whole of a document falling within para 2 in the case of the subpoena addressed to SNOL, that is a matter to be determined if and when a claim of privilege is made.
42 As to the suggested limitations with respect to time periods, I reject both suggested limitations. I accept the respondents' submission that there is no clear line or separation between SNOL and ACE, particularly in light of clause 7 of the letter of agreement between the applicant and ACE and the reference to SNOL's legal team. As to the other suggested time limitation (i.e., the last day of the hearing), a number of things might be said about that, including that the proceedings at first instance are not "concluded" until judgment is handed down or until all final orders are made. In any event, I am satisfied that documents sought after 27 July 2022 may possibly throw light on the issues I will need to determine.